Truthiness Reaches the Supreme Court

For the rare example of an entertaining brief, read on.

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. Joe says:

    At least, from a serious source.

  2. Jennifer Hendricks says:

    Check out footnote 15!

  3. Shag from Brookline says:

    Did P.J. O’ actually write the brief rather than the attorney of record? I wonder what CJ Roberts’ reaction will be to footnote 15. Oral arguments should be hilarious. While the brief is brief, there is much to be read between the lines. Perhaps cameras in the Court may be more welcome than sarcasm in briefs (rather than sarcasm of the Justices during orals). Will this brief, at least briefly, replace the Brandeis brief?

  4. Joe says:

    Sounds like the guy who signed the brief (familiar from readers of Volokh Conspiracy) wrote it and O’Rourke inserted most of the quips. I think they laid it on a bit thick regarding the law (e.g., using the plurality opinion in Alvarez/Stolen Valor), but it is a brief.

  5. Shag from Brookline says:

    Here’s the paragraph on p. 18 just before the “Conclusion”:

    “There is no lie that can be be told about a politician that will not be more damaging to the liar once the truth is revealed. A crushing send-up on The Daily Show or The Colbert Report will do more to clean up political rhetoric than the Ohio Election Commission ever could.”

    Perhaps the Supreme Court bar will help provide full-employment for satirists. Take a peek at footnote 1 on p. 1 discussing compliance with Court Rule 37.3a, and closing with this:

    “Also, amici and their counsel, family members, and pets have all won the Congressional Medal of Honor.”

    Is this violative of the Court’s Rules? If so, does the First Amendment protect Amici and their counsel? Or is there truthiness to the statement?

  6. Shag from Brookline says:

    Might an amici (or a party’s) brief constitute a harangue of the Court? Perhaps some of the Justices may find intimidating the “interest” of P.J. O’Rourke (p.p. 1-2) with the listing of some of his writings, in conjunction with the closing paragraph of that section:

    “This case concerns amici because the law at issue undermines the First Amendment’s protection of the serious business of making politics funny.”

    given that the Justices may be a tad involved in politics (as noted in the past by Finley Peter Dunne’s Mr. Dooley) even though they are unelected and once were the least dangerous branch.

    Before reading this brief, I had read Jack Balkin’s recent draft essay “The Last Days of Disco: Why the American Political System is Dysfunctional,” noting the role of the Court in his theme. (A link is available at Bakinization.) So is this amici brief a sign of a forthcoming change? Check out Section IX. The side Effects of a Long Transition, subsection B. The Judiciary in a Period of Sustained Disfunction (p.p. 41-44.)

    Standing up in the Court during orals with remarks to the Justices by a spectator may be a harangue, but a short-lived one, as opposed to an amici brief – but may provide fodder for P.J. O’Rourke and other satirists aimed at the Court. Mr. Dooley may rest comfortably.